ASC Pty Ltd

[2023] FWCA 1180

[2023] FWCA 1180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ASC Pty Ltd

(AG2023/968)

ASC PTY LTD WESTERN AUSTRALIA ENTERPRISE AGREEMENT MAINTENANCE TEAM LEADS 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 26 APRIL 2023

Application for approval of the ASC Pty Ltd Western Australia Enterprise Agreement Maintenance Team Leads 2022

1. An application has been made for approval of an enterprise agreement known as the ASC Pty Ltd Western Australia Enterprise Agreement Maintenance Team Leads 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by ASC Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause undertaking [1], I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

· Clause 27 of the Agreement provides that long service leave is in accordance with the Long Service Leave Act 1987 (SA). However, clause 4 of the Agreement indicates that employees under the Agreement primarily reside in Western Australia, where the Long Service Leave Act 1958 (WA) applies.

·  Clause 9(e) of the Agreement contains provisions relating to summary dismissal including “…malingering, fighting, theft or neglect of duty”. The effect of this clause broadens the meaning of serious misconduct contained in Fair Work Regulations 2009 Regs 1.07.

·  Clause 20(c) of the Agreement provides by agreement between the Employer and an employee or employees concerned, public holidays may be substituted. To the extent that the clause appears to enable substitution of a public holiday by agreement with a majority of employees (rather than with an individual employee), it is inconsistent with s 115(3) of the Act.

·  Clause 23 provides for compassionate leave, however it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act. It is noted that the Agreement allows for up 5 days paid which is more beneficial than the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the organisations[DPM1] .

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 3 May 2023. The nominal expiry date of the Agreement is 3 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE519829  PR761370>

Annexure A

[DPM1]Needs a PN number, sorry I lost it